Wednesday, July 30, 2014

Recent years have seen an explosion in the number of briefs amicus curiae filed in the U.S. Supreme Court. Many such briefs make empirical claims based upon purported facts that do not appear in the record generated at the trial level. My colleague Allison Orr Larsen has studied the role of Supreme Court fact-finding, including the Court's willingness in some cases to rely upon untested factual assertions drawn from such amicus briefs. She offered the following observations about the role of amicus-based fact-finding (or lack thereof) as illustrated by two recent Supreme Court decisions: Hobby Lobby v. Burwell and Riley v. California.

"Over 60 amici curiae ('friends of the Court') filed briefs
in the Supreme Court’s controversial Hobby Lobbycase this Term.In
discussing and dismissing an argument made in one of them, Justice Alito said
something that merits a pause.One
amicus brief argued, in support of the government’s position, that the penalty
Hobby Lobby would have to pay for not covering its employees’ health
insurance would actually be less than
the cost of providing health insurance in the first place. As a result, this
brief said, Hobby Lobby could avoid the challenged mandate and still be better
off than it was before the ACA and its implementing regulations.If this fact is true, it is quite significant
to the Court’s analysis.Much of Justice
Alito’s reasoning for why Hobby Lobby’s religious beliefs were 'substantially
burdened' by the contraception mandate depended on the 'economic consequences'
that would follow if it did not comply with the law.

Justice
Alito dismissed the amicus claim, however, because, he said, 'we do not
generally entertain arguments that were not raised below and are not advanced to
the Court by any party.' He added that this was particularly a bad place to credit
the off the record factual assertion because the amici’s argument was
'intensely empirical' (which, as all lawyers recognize, sounds a bit like
‘there is too much math in here.’)

This
descriptive statement by Justice Alito about Supreme Court practice is simply
incorrect.As I have documented before, independent
judicial research – research beyond the records and outside of the party briefs
– is very common at the Supreme Court. See Larsen, Confronting
Supreme Court Fact Finding, 98 Va Law Rev 1255 (2012).In
fact, Justice Alito himself was actually called out by Justice Scalia for his 'considerable
independent research' on violent video games when the Court found such games
protected by the First Amendment a few terms ago.Nor
have the Justices been shy about citing 'intensely empirical' amicus briefs or
even their own independently-discovered empirical studies in the past on
subjects as varied as economics, medicine, psychology, and even
terrorism-funding practices.In short,
they do it all the time.

Amicus briefs in particular are a rich
resource for the Justices to find factual support for their opinions.As I argue in a forthcoming
article, The Trouble with Amicus Facts, the Court is now inundated with
eleventh-hour, untested, advocacy-motivated claims of factual expertise.And, contrary to Justice Alito’s claim, the
Justices are listening.In fact one does not have to look far back in
time for a ready example.Mere days
before the Hobby Lobby decision, a
unanimous Court held in Riley v.
California that the police may not generally search digital information on
a cell phone incident to an arrest.In
so doing, the Court rejected the government’s claim that such a search was
necessary to prevent the destruction of evidence.All the police need to do, the Court tells
us, is to isolate the phone from radio waves in bags that are essentially made
of aluminum foil.The authority the
Court cites for this?An amicus
brief filed by criminal law professors (good ones at that, some from my own
institution).

Whether or not the facts in these
amicus briefs are credible and regardless of whether it is a good idea or a bad
idea to avoid fact-finding beyond what the parties provide, the larger point
here is about inconsistency.As the
Justices are flooded with factual information, and while the amicus business
grows in size, this problem is only going to get more significant. We should
expect some sort of procedural uniformity when the Court is pressed with and
surrounded by factual claims from new places.This practice of 'amicus
opportunism' – we credit them when we want to and dismiss them when we don’t –
is troubling to say the least."

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Bishop James Madison, the cousin of our nation's fourth President, was the President of the College of William and Mary from 1777 until his death in 1812. Prior to appointment as President, Madison served as a professor of natural philosophy and mathematics. During the Revolutionary War, Madison organized a militia company of students. William and Mary claims that Madison was the first professor of Political Economy in the United States. His lectures on the subject relied upon Adam Smith's Wealth of Nations, published in 1776. Along with Thomas Jefferson, Madison was instrumental in founding the School of Law at William and Mary, appointing George Wythe as William and Mary's first Professor of Law and Police.